Ismail v. Aboubakr

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2160-01E.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 5, 2010

Before Judges Fuentes and Simonelli.

Defendant Ahmed Aboubakr appeals from the August 20, 2008 Family Part order that denied his motion to disqualify a court-appointed expert, appoint a new expert, hold plaintiff in contempt for failing to comply with his supervised parenting time schedule, and for make-up parenting time. Defendant also appeals from the same order, that reduced his parenting time.

We affirm in part, reverse in part, and remand for further proceedings.

I.

Defendant is a native of Egypt with dual citizenship in Egypt and the United States. Plaintiff Nancy Ismail is a United States citizen of Egyptian ancestry. The parties were married on June 27, 1999, and their only child, a son, was born in August 2000.

As a result of defendant's acts of domestic violence, plaintiff filed for divorce in April 2001, and obtained a final restraining order against him. In October 2001, defendant was convicted of assaulting plaintiff. Prior thereto, Paul Dasher, Ph.D. had conducted a court-ordered psychological evaluation of defendant and recommended that he have supervised parenting time with his son for three months, with subsequent reviews thereafter to determine any modifications in parenting time.

By order of June 19, 2003, the trial judge granted physical custody of the son to plaintiff and set defendant's parenting time on Saturdays or Sundays between 12 p.m. and 5 p.m., and on Wednesdays between 6 p.m. and 8 p.m. Because defendant had threatened numerous times to abscond with his son to Egypt, the order provided that plaintiff's father would supervise defendant's parenting time, that defendant must surrender his United States and Egyptian passports, and that defendant was prohibited from removing a security bracelet the son wore during parenting time.

The judge appointed Robert Rosenbaum Ed.D. to assist the court in resolving the parenting time issue. Rosenbaum issued a detailed report, recommending that the judge grant plaintiff sole legal custody of her son and set "[a] strict, set schedule for visitation/parenting time" for defendant. He concluded that

It is . . . reasonable to believe that [defendant] is at risk for flight. Given his unstable psychological condition and his overt disregard to individuals' rights, his taking [his son] to Egypt should not be underestimated.

However, it should be noted that [defendant] is not sociopathic. I believe his behavior to be based in his underlying psychological state. Thus, I believe that some closely supervised visitation with [his son] would be appropriate.

Once [defendant] has complied with the Court orders and shown progress in therapy, I would recommend he be given limited, unsupervised visitation.

At trial, Rosenbaum testified consistent with his report. Upon conclusion of all testimony, the judge found that defendant had threatened to kill plaintiff, physically assaulted her numerous times, refused to accept responsibility for his actions despite a conviction for assault, threatened numerous times to abscond with his son to Egypt, and that an ongoing risk existed that defendant would abscond with his son to Egypt if granted unsupervised parenting time. The judge granted plaintiff primary residential custody of her son, granted defendant supervised parenting time, and ordered the child to wear a GPS device during defendant's parenting time.

On February 3, 2004, the judge entered an amended final judgment of divorce, affirming a prior distribution of marital assets, setting weekly child support at $141, and ordering the parties to each pay one-half of Rosenbaum's trial fee. The judge also continued defendant's supervised parenting time as set forth in the June 19, 2003 order, except weekday parenting time was changed from Wednesday from 6 p.m. to 8 p.m. to Thursday from 6:30 p.m. to 8:30 p.m.

Defendant appealed. On appeal, he contended, in part, that the trial judge should not have compelled him to pay one-half of Rosenbaum's fee because Rosenbaum was biased. Defendant also challenged the supervised parenting time. We affirmed in an unreported opinion. Ismail v. Aboubakr, No. A-4373-03 (App. Div. March 17, 2005). As to defendant's claim of bias, we concluded that "[t]he report of the neutral court appointed expert, Dr. Rosenbaum was introduced in evidence. The report does not unduly favor or criticize defendant nor is that a justification for defendant refusing to pay one-half of his fee." (Slip op. at 3).

On February 29, 2008, plaintiff filed a motion to hold defendant in contempt for removing the son's GPS device.*fn1

Defendant filed a cross-motion, seeking a parenting time evaluation and unsupervised parenting time, and to prohibit plaintiff from requiring his son to wear a "padlocked" GPS device during defendant's parenting time.

The matter was heard by a different judge. During oral argument, a discussion occurred about changing defendant's Sunday parenting time to three hours and his Thursday time to two and one-half hours so as to avoid having the son wear the GPS device, and to accommodate plaintiff's father, on whom the parenting time schedule had become burdensome. Defendant's attorney advised the judge that defendant will "go with the change in hours . . . . as long as [his son] doesn't have to wear [the GPS device] around his neck." The judge responded, "[s]o, what we're going to do is cut the Sunday [time] down from five [hours] to three [hours], increase the Thursday [time] from two to two and a half [hours.]" Defendant did not object. The judge also re-appointed Rosenbaum to conduct the parenting time evaluation because "[h]e is most familiar with the parties, has previously prepared a detailed report and has testified at trial in this matter."

By order of March 28, 2008, the judge granted defendant's request for a parenting time evaluation, ordered defendant to contact Rosenbaum, required defendant to pay Rosenbaum's fee, prohibited plaintiff from requiring her son to wear a "padlocked" GPS device during defendant's parenting time, and amended defendant's parenting time to three hours on Sunday and two and one-half hours on Thursday. Defendant did not appeal this order.

Defendant filed a motion for reconsideration of the March 28, 2008 order only as to the appointment of Rosenbaum. Defendant requested the appointment of Dasher, arguing that Rosenbaum would not provide "a true and fair evaluation" based on his report and testimony during trial, which defendant claimed placed him "in the worst possible light" and prevented him from "freely communicat[ing] with [Rosenbaum] without concern of bias."

After a hearing, the judge denied the motion, concluding as follows:

We're here to look to see whether any controlling decisions, anything that I overlooked that I erred. The only thing that your client has is, well, we have this other doctor that his previous attorney didn't bring up.

That doesn't change the fact that . . . there's nothing here by [defendant] that makes me think Dr. Rosenbaum is going to be biased. I wanted someone who was familiar with the parties . . . .

I don't have anything here that shows me that Dr. Rosenbaum was biased, that I overlooked anything, other than maybe I could have picked Dr. [Dasher]. But you know what? I still would have rather had someone who had that whole case and prepared the file who was the most familiar with these parties.

The judge entered an order on June 10, 2008, memorializing his decision.

In a letter dated June 11, 2008, a copy of which defendant's attorney received, plaintiff's attorney informed Rosenbaum that the court had re-appointed him to re-evaluate defendant's parenting time (the letter). The letter included copies of certain court-related documents.

The letter prompted defendant to file a third motion to disqualify Rosenbaum, again arguing he was biased and would not provide a fair evaluation. Defendant also argued that the letter's purpose was to prejudice Rosenbaum and "sufficiently [destroy] any chance of the defendant receiving a fair evaluation."

Defendant amended his motion to include a request to hold plaintiff in contempt for interfering with his parenting time and for make-up parenting time, based on plaintiff allegedly taking her son on vacation and on plaintiff's father's alleged unavailability during defendant's parenting time. Plaintiff filed a cross-motion, seeking to have her son resume wearing the "padlocked" GPS device or, alternatively, to suspend defendant's parenting time and hold him in contempt for violating the June 10, 2008 order.*fn2

After considering the motions on the papers, the judge entered the August 20, 2008 order, denying defendant's motion to disqualify Rosenbaum. The judge concluded that defendant presented no facts showing that Rosenbaum was biased or that the letter would affect hiss opinion. The judge emphasized that in defendant's prior appeal, this court found that Rosenbaum's report did not unduly favor or criticize defendant. Without explanation, however, the judge denied defendant's motion to hold plaintiff in contempt and for make-up parenting time, and reduced defendant's supervised parenting time to a total of three hours on Sunday.

Defendant filed the present appeal on October 8, 2008. On October 23, 2008, the judge filed a written opinion pursuant to Rule 2:5-1(b), amplifying his reasons for denying defendant's motion to disqualify Rosenbaum. The judge did not address the parenting time issue.

II.

Defendant contends that the judge erred in denying his motion to disqualify Rosenbaum and appoint a new expert. He argues that Rosenbaum is biased, and that it is unreasonable to subject him to an evaluation by an expert to whom he objects and require him to pay Rosenbaum's fee. Defendant also contends that the judge erred in failing to find that the letter was an improper communication, and abused his discretion in failing to disqualify Rosenbaum based upon it. These contentions lack merit.

Rule 5:3-3(a) provides as follows, in relevant part:

Whenever the court, in its discretion, concludes that disposition of an issue will be assisted by expert opinion, and whether or not the parties propose to offer or have offered their own experts' opinions, the court may order any person under its jurisdiction to be examined by a physician, psychiatrist, psychologist or other health or mental health professional designated by it. No such appointment, however, shall be made of an expert who is providing or has provided therapy to any member of that person's family.

Rule 5:3-3(i) provides as follows:

When the court appoints a medical, mental health, or social expert pursuant to R. 5:3-3(a), an economic expert pursuant to R.5:3-3(b), or should the parties agree on the selection of an expert consistent with R.5:3-3(c), the court may direct who shall pay the cost of such examination, appraisal, or report.

Defendant's brief on appeal contains no facts or legal arguments showing an abuse of discretion in the re-appointment of Rosenbaum and in requiring defendant to pay his fee. He also presents no facts that Rosenbaum is biased or that the letter created bias. Defendant merely has an unsubstantiated perception of bias based on his dissatisfaction with Rosenbaum's report and prior trial testimony, which confirmed that, due to defendant's violent propensity and threats to abscond with his son to Egypt, supervised parenting time was necessary to protect the child's best interest.

Even if a hint of bias existed, defendant has safeguards available to him. For example, he is not bound by Rosenbaum's report and can retain his own expert to counter it. R. 5:3-3(d) and (h). He may also expose any bias by deposing Rosenbaum and cross-examining him at trial. R. 5:3-3(e), (f) and (g).

As for the letter, which was not an ex parte communication, Rule 5:3-3(e) provides as follows, in relevant part:

Any expert appointed by the court shall be permitted to conduct an investigation independently to obtain information reasonable and necessary to complete his or her report from any source, and may make contact directly with any party from whom information is sought within the scope of the order of appointment. [(Emphasis added).]

This rule, therefore, permitted either party to submit to Rosenbaum any information relevant to the matter. The record lacks no evidence that plaintiff's attorney spoke to or met with Rosenbaum about his report or attempted to influence his conclusions and opinions in any way.

III.

Defendant contends that the trial judge abused his discretion in twice reducing his parenting time without any factual findings. He also contends that we should direct that a different judge consider this matter.

Defendant's contention as it relates to the March 28, 2008 order reducing his parenting time from seven hours to five and one-half hours, lacks merit. Defendant agreed to the reduction, and we affirmed the parenting time set forth in that order. If an issue has been determined on the merits in a prior appeal it cannot be re-litigated in a later appeal of the same case, even if of constitutional dimension. State v. Cusick, 116 N.J. Super. 482, 485 (App. Div. 1971).

We are compelled, however, to reverse and remand that part of the August 20, 2008 order denying defendant's motion to hold plaintiff in contempt for failing to comply with his parenting time schedule, for make-up parenting time, and reducing his parenting time to three hours. There is no record of any factual findings supporting theses determinations.

Judges must make findings of fact on motions decided by written order. R. 1:7-4. This requires judges to articulate "specific findings of fact and conclusions of law." Pressler, Current N.J. Court Rules, comment on R. 1:7-4 (2010). "Naked conclusions do not satisfy the purpose of R. 1:7-4[,]" instead clear factual findings must be made to support the legal conclusions reached. Curtis v. Finneran, 83 N.J. 563, 570 (1980). Kas Oriental Rugs, Inc. v. Ellman, 407 N.J. Super. 538, 561 (App. Div.), certif. denied, 200 N.J. 476 (2009). If sufficiently clear factual findings are absent from the record, we will remand to the trial court for additional findings. See Curtis, supra, 83 N.J. at 571. We, thus, reverse that part of the August 20, 2008 order denying defendant's motion to hold plaintiff in contempt for failing to comply with his parenting time, for make-up parent time, and reducing his parenting to three hours, and remand the matter for the trial judge to make specific findings supporting his decision. We discern no reason to direct that a different judge consider this matter.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

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